The hostility that lawyers create in divorce cases.

It is commonly known in psychological circles that the stress of divorce often reach 9 out of 10 on the Subjective Units of Disturbance scale, the scale for measuring the subjective intensity of disturbance or distress experienced by an individual. Divorce is painful and whenever there are children involved, the family still exists after the relationship ends. The manner in which spouses end a relationship and the way they and their lawyers conduct themselves during this process determines whether the family will be functional or dysfunctional from that day forward.

In an article in the Economist recently it was stated that all around the world, lawyers generate more hostility than the members of any other profession—with the possible exception of journalism. This hostility is even more evident in divorce law, especially when regard is had to how certain divorce lawyers in big divorce cases love to litigate in the media. Family and Divorce Law attorneys may stress that they have a calling, rooted in a deep sense of ethics and commitment to the best interests of their clients. But what they hardly ever mention is the fact that being a lawyer is also a business with at least one eye on profit levels. Without a good business head, very few attorneys will survive today’s economic challenges. So the longer you can stretch the finalisation of a divorce, the more money you will make.

Nowhere is this tension between ethics and business as pronounced as it is with divorce. For some lawyers, a new divorce case is just another client, another day at the office; for the client – vulnerable, distressed and angry – this is usually the worst thing that they have ever experienced and this collision does not always produce a happy result.

South African divorce law is based on the adversarial system where two lawyers represent their clients’ positions before a judge or magistrate, in contested divorce cases, who then attempt to determine the truth of the case. Some writers trace the process to the medieval age old mode of trial by combat, a system that pushes the parties into a mind-set of winners and losers. Let’s face it, we live in an adversarial society, one that approves the idea that every time there is a conflict sides have to be taken. That means one side ending up on top, the other side ending up on the bottom, a looser and a winner. The adversarial system is a poor way to resolve divorce. This is particularly true where children are involved, the adversarial system is slow and many people are denied justice for too long because the system tends to lengthen the trial process. “Justice delayed is justice denied”. This system is also expensive and requires litigants to have legal representation. The high cost of legal advice and legal representation hinder those who cannot afford it. This may mean that vital evidence which needs to be drawn out by questioning may not be revealed in the trial and as such, the truth may not always emerge.

In the Foreword of the book “Everyone’s Guide to Divorce and Separation”, published by Random House Struik, Judge Denis Davis states as follows: “The adversarial process which is the manner in which the law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle. Often in my experience on the Bench, I have wondered how such vicious and counter-productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish”.

Divorce attorneys have been taught that the best way to protect their client is to fight for them. When most of them look at a divorce situation all they can see is the conflict that is involved between the spouses. To most divorce attorneys the obvious conclusion is that a fight has to be engaged in, in order to protect their client. If they could step back and take another look at the situation they might be able to see that the conflict and animosity is most of the time of their own creation. Most divorce warfare is created by the attorney’s adversarial nature and the clients play a role in it because it is what they expect and demand from them.

Because our courts operate in an adversarial model, the business of resolving divorce-related issues becomes a contest between starkly opposing extremes. The contest is orchestrated by gladiatorial attorneys whose job it is, in trial-based dispute resolution, to trim down the divorcing couple’s complex emotional, financial, and material issues into readily understood black and white terms. Two people go through a divorce. No matter whose choice it was there is always pain and anger involved on both sides. If you employ an attorney that is going to become aggressive and go on the attack, guess who will get the blame. You will, not your attorney who enjoys being adversarial. He/she may be the person to take the negative action but you will be the one to suffer the consequences of his or her actions.

Like it or not, you are responsible for your attorney’s actions. You did the hiring and you will be paying the legal fees. It is usually in everyone’s best interest that an attorney knows that his/her job is to promote relationships instead of destroying them. It is his/her job to find solutions that mean everyone walks away satisfied and no one is left on the bottom of the pile wondering what the hell happened. Your attorney works for you, you do not work for him/her and if there is not a willingness to work with you in the way you feel most comfortable then find an attorney who is willing to.

It is outrageous to see how much money and effort is spent in contested divorces by preparing for the “main event”: the trial; and while divorce attorneys know that settlement is the likeliest outcome for most cases they handle, it is a common saying among divorce lawyers that the best way to prepare for settlement is to prepare well for trial. The irony is that the marital regime governs the patrimonial consequences of divorce (the manner in which the assets are divided). For example if one is married in community the estate must split 50/50 unless a forfeiture is claimed or when parties are married out of community of property with the inclusion of the accrual an accrual claim will exist, yet many lawyers will advise clients to litigate, spending thousands of rands on legal costs that the parties could have spent on the children for example. Since a judge will never award a party all the relief that he/she requests, divorce lawyers will ask for the moon and the stars.

When two unreasoning spouses create a “divorce of attrition”, the only winners are usually the bank accounts of lawyers. One thing is certain though: the less emotional people are during a divorce, the more likely they are to keep their costs down. Only 3% to 5% of divorce cases actually do go to trial. It should come as no surprise, given the costly and emotional process that family law attorneys go through on the road to settlement, that they worry about negligence suits and frequently find themselves in fee disputes with clients. Unhappy clients are commonplace in family law practice, where disputes above the horizon about rands and hours with children often are the weapons with which clients fight hidden battles that are really about who is aggressor, who is victim, who is good and who is bad. The fees and costs incurred in family law litigation can devastate the savings of all but the wealthiest litigants. Little wonder that family law is a field in which even the most successful practitioners experience high levels of stress and frustration.

The time has come for lawyers specialising in family law to become more collaborative in their approach to solving divorce and family law disputes. In addition we need to re-engineer our family law system. We need problem-solving courts for family matters and the default process for resolving family law matters must be changed from litigation to consensual dispute resolution. After all who has the right to declare parents to be enemies? In family law matters, litigation feeds more than just paranoia. It feeds the lawyers’ bellies and bank accounts. It feeds egos. It breeds contempt (the parties for each other and the parties towards a broken system.) Is there really a place for the courtroom in family law? maybe, but it needs to be tempered with like-minded attorneys, who are more collaborative than adversarial. Litigation has a way of taking two people, who at one time or another cared about each other enough to marry and maybe even have children, and rip their lives to shreds beyond recognition. It turns dislike into pure hatred. It turns tolerance into intolerance.

Mutual respect and renewed confidence leads to solutions. In Germany for example they no longer have adversarial trials when it comes to issues pertaining to children. Judges in Germany no longer tolerate lawyers who try to delay hearings and resolution of issues. The time of uncertainty is itself stressful and leads to destructive behaviour. The role of attorneys in Germany is now de-escalating conflict and the results seem far superior then when they used to escalate conflict. I think the time has come that the public wants psychologically-minded lawyers in family law disputes.

Collaborative Divorce

So just when you thought that mediation was the ultimate dispute resolution process, along came “collaborative lawyering.” Collaborative divorce is a progressive approach to conflict resolution in family law, it facilitates an inexpensive divorce process outside of court. Unlike litigation, collaborative divorce requires cooperation between both attorneys as they help their clients reach a fair solution. The process’ non-adversarial format provides a venue for open dialogue and idea exchange among clients, lawyers and mediators, as well as forensic accountants and other neutral participants. It is a method of dispute resolution whereby the parties and their lawyers contract to settle a matter without involving the court. It is a method of practising law where the parties and the lawyers representing them sign a contract in which they agree to work towards settlement. If the parties are unable to settle and adversarial proceedings are to be filed, the lawyers are required to withdraw. New lawyers must be obtained for trial. In this method, the attorneys must focus on settlement and are free to use their creative problem solving skills. Communication is respectful and the process is future-focused. It works best if several lawyers in the community are trained in collaborative law so there are options for the clients and lawyers to work together. Collaborative practice originated in the United States of America in 1990. It is also practised widely in Canada and has spread to the United Kingdom, Australia, Italy, France, Austria, Switzerland and New Zealand.

What we need is a mind shift among divorce and family law attorneys, a new breed, we need lawyers who lean more towards a therapeutic kind of jurisprudence. Parents also need to understand that what they do and say toward each other has long-term consequences for all parties involved. The things people do with or without the help of their attorneys, have dire consequences that will last for generations to come. Unfortunately divorce is a fact of life and all we can do is to make it a less destructive process. According to research 80 – 85% of family law matters can be resolved without litigation. When you start a court case, you are starting a war.

Has the time not arrived that law schools start to train lawyers who are able to effectively meet the public’s needs, more psychologically-minded lawyers in the area of divorce and family law?